Ricci v. DeStefano: New Opportunities for Employers to Correct Disparate Impact Using Croson Studies (Part One of a Two Part Series)

Source: Richard E. Biddle and Daniel A. Biddle, Labor Law Journal, Vol. 61 no. 2, Summer 2010
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On June 29, 2009, the United States Supreme Court handed down the first Title VII ruling answering the difficult question: “Under what circumstances can an employer subject to Title VII implement otherwise prohibited disparate-treatment discrimination to avoid disparate impact liability?” Ricci v. DeStefano answered this difficult question and, in so doing, presented some additional layers to the Title VII framework relevant to both disparate impact and disparate treatment cases that must be applied in the future by federal courts. This article discusses these implications. The Supreme Court in Ricci adopted a “strong-basis-in-evidence standard” as a matter of statutory construction for courts to use as a means of resolving conflicts between Title VII’s disparate-treatment and disparate-impact provisions – “allowing violations of one in the name of compliance with the other only in certain, narrow circumstances.” This article introduces the concept of a “Croson Study,” for 20 years limited in its application to contracting issues in the public sector, for employment issues to assist employers meet the Ricci-set “strong-basis-in-evidence standard.” The second part of this article, appearing in the next issue, will provide some specific applications of Croson Studies.

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